It is very difficult to obtain a definition that encompasses the entire scope and functions of this doctrine; as we will see below, jurisprudence and doctrine have been in charge of defining, explaining, delimiting and applying the lifting of the veil, thus creating a “mare magnum” of concepts and cases that are almost impossible to simplify in a small paragraph.
Various authors define the doctrine:
- For Ángel Yágüez, it is "the action aimed at dispensing externally with the legal entity and, from there, penetrate the interior of it, lifting its veil and thus examining the real interests that exist or throb within it". For Antonio Embid Irujo, "it is an instrument to prevent fraud and prevent a materially unlawful result from being produced through a formally correct mechanism." Professor Boldo Rodá moves away from formal definitions and defines it as "a metaphorical expression under which a set of judgments are grouped in which cases of law fraud are resolved, characterized by their common standard of coverage relating to the legal person.
As an intuitive definition, we can start from the fact that the dismissal of the legal personality or the dismissal of the corporate veil is the legal doctrine carried out by the courts aimed at penetrating the substratum of the society in question to correct the fraudulent uses that may occur for harm third parties by relying on the legal personality of a company.
ORIGINS OF THE DOCTRINE: COMMON LAW AND CONTINENTAL LAW, SUBSEQUENT DEVELOPMENT IN SPAIN.
2.1 American Origin (COMMON LAW):
Although its origin is practically considered Anglo-Saxon, with primitive cases found in both the United States and England. The United States deserves the merit of being the first state to apply the Disregard of Legal Entity. In the case of Bank of the United States Vs. Deveaux in 1809 directed by the famous Judge Marshall (case Marbury Vs. Madison) in which the problem was presented from the procedural point of view: Devaux sued the US bank, the case rose to the federal court directed by said rapporteur, the defendant bank alleged that the present court was not competent, since it could only resolve cases when the litigating parties belonged to different states. Judge Marshall, making an expansive interpretation of art.3 of the Federal Constitution which says that “its competence was limited to problems betweencitizens of various states. " Extrapolating and expanding the application of the word “citizens” and observing that the partners belonged to various states, the judge decides to skip the legal personality of the bank, alleging that the reality of the partners should be understood as natural persons and not as a society, starting of the first premise, and complementing it with the fact of the different origins of the partners, decided to estimate the resource. In a later case, that of Harris Vs. Youngstown Bridge Co. Highlights the responsibility of the parent company with respect to the parent-subsidiary Situations.
2.2. British origin (COMMON LAW)
In the British origin, we find the case Salomon Vs. Salomon & Co Ltd, of 1897, in which for the first time a distinction is made between a Legal person and a natural person: the craftsman Aron Salomon formed a mercantile company that later sold, the company He had outstanding debts after the sale, and the company (in the hands of another company) decides to sue Aron Salomon for those debts. The first two courts that were appealed agreed with the society, but it was not until The House of Lords received the case to change the resolution of the previous courts and make the decision that a company and a natural person are two entities. completely different. The resolution does not apply the doctrine carried out in the United States,Not even a similar solution but it establishes 2 important principles that are still in force: the separation of the personality of the society and the physical person and the limited liability of the heritage. Another situation that completes and feels a change of position in the English courts is the Adams v. Cape Industries Plc case. It was the sentence that further deepened the doctrine of lifting the veil, creating criteria for its future application.
2.3. Continental origin: Germany (CONTINENTAL LAW)
The first continental theories about the lifting of the corporate veil emerged in the 1920s by Rolf Serick with the term Durchgriffshaftung (literally penetration of the corporate veil) based on the application of this doctrine in a case of domination of a parent company over another subsidiary company, in case of asset capitalization or confusion, ignoring corporate formalities. Authors Muller-Freienfels and Rehbinder developed the opposite theory of finalistic interpretation.
The German courts have already recognized the possibility of dismissing the legal personality of a company, although they were reluctant to apply it, not considering themselves in Germany as a doctrine of law, this reinforces the concept of application as the last ratio that our jurisprudence defends, in addition to the assumptions previously commented.
2.4. Origin in Spanish law
As the complexity of societies progressed and with it their possible use as an instrument to commit illegal acts under the legal form, the question arose to our Supreme Court on how to look beyond the form of the legal person. At first, the High Court did not apply the doctrine of lifting the veil, but applied the so-called "third party theory".
The present theory was not comparable to that of the uprising, but they shared the foundation of observing what was behind a society. This doctrine was applied for the first time in the STS of June 7, 1927 but the most prominent is that of December 12, 1950, based on the lack of the principle of good faith among the parts of the partners after the acquisition of a property, subsequent liquidation of the company and the award of that property to one of the partners.
The doctrine continued to apply until 1984, the year in which the doctrine of lifting the veil was applied for the first time in Spain with the STS of May 28, 1984 in an event of contractual liability and dual legal entities.
APPLICATION IN THE SPANISH JUDICIAL SYSTEM
In our legal system there is no concept or legal provision on the possible application of this doctrine in any case that is presented. In view of such deficit, doctrine and jurisprudence have developed concepts and guidelines to follow to put the veil lifting into practice.
The first approach is found in the STS of 1984 in which the court admits penetrating into the personal substratum of entities with their own legal personality in order to avoid damage to private or public interests or may be applied as fraud or misuse of the personality: "That already, from the civil and commercial point of view, the most authoritative doctrine, in the conflict between legal security and justice, has been decided prudentially, and according to cases, to apply by way of equity and acceptance of the principle of good faith, the thesis and practice of the thesis and practice of penetrating into the personal «substratum» of the entities or societies, to which the law confers their own legal personality, in order to avoid that under the influence of that fiction or legal formmay already harm private or public interests or be used as a way of fraud, admitting the possibility that judges may penetrate "lift the legal veil" inside these people when necessary to avoid abuse of that independence in harm to others or "the rights of others" or against the interests of the partners, that is, of a misuse of their personality, in an "antisocial exercise ")
From this definition we draw several requirements for its application, which in later sentences will be nuanced and increased for a correct application, which we will comment throughout the work due to the influence of these sections in all sentences:
- Conflict between legal certainty and justice. Application through equity and in good faith. Damage of interests and fraud of law. Abuse of law and antisocial exercise of the same.
In doctrinal matters, we must highlight the contribution of Professor Carmen Boldó Rodá in her book “Lifting the Veil and a Legal Person in Spanish Private Law” where she takes as applicable the cases described in the doctrine of the Durchgriffshaftung applying Spanish jurisprudence and case law:
- Confusion of patrimony and spheres, which supposes that the patrimony of the partners cannot be distinguished from the company in cases of the sole proprietorship. Capital insufficiency, cases in which the partners do not endow the company with the necessary patrimonial resources. The material and nominal undercapitalization is distinguished External management when the will of the company depends on another company that participates mainly in its capital with the problems of the groups of companies. Abuse of legal personality in fraud of law or breach of obligations.
The STS 18 May 2006 stipulates the use of the doctrine in the budgets of the performance of one or more natural persons under the formal appearance of a legal person. Subsequently, it assumes that the verification of the falsity of a legal personality, since it is a non-public situation, is always complex and to specify if we find ourselves with a legal personality for these purposes, the indications that allow us to reach that conclusion, the that legal personality has been used for fraudulent use, a confusion of personalities and assets between natural and legal person in STS 7769/2007.
In subsequent SSTS in 2005 and 2009 they considered it an instrument to repress fraud or abuse committed with support in the legal autonomy of a society.
In subsequent definitions, STS 718/2011 defines it as an “instrument to correct the fraudulent use of legal personality”, while the SSTS recalls September 19, 2007, February 28, 2008, October 14, 2010 and 326/2013, is also a “legal instrument that is put at the service of a legal or physical person to enforce a passive legitimation different from that of the contractual or non-contractual relationship… converting those who would be third parties-the partners- in parts responsible from a weighted and restrictive application of the same, which allows us to verify a situation of abuse of the legal personality that is detrimental to public or private interests, that causes harm to others, circumvents the rights of others or is used as a defrauding means or instrument,or for a fraudulent purpose and that occurs, among other cases, when it comes to avoiding personal responsibilities, and among them the payment of debts. ”
In the same STS 7769/2007, it cites previous ones in time such as the SSTS May 18, 2006, December 27, 1997, April 19, 2006, July 29, 2005).
In the 2007 judgment previously commented, it declares the use of the doctrine because the abuse of personality was verified on the basis of undercapitalization, appearance of a lease and negative equity of the company at the time of the facts. Confirming these assumptions in STS 718/2011 when it stipulates that they are cases of undercapitalization, personality confusion, external management and fraud or abuse.
In another STS of May 30, 2012, qualifies the 2007 judgment and requires that those circumstances that clearly demonstrate the abuse of the personality of society be accredited, this generates a wide type of cases that would make possible the lifting of the veil, without being constituted as numerus clausus. This STS derives from the trend of the TS in continuous previous judgments such as the STS of June 1, 2011, together with another one of October 27 of the same year, which require complete proof that legal personality is used to evade compliance of legal, contractual or non-contractual obligations, including the family nature of a company or group of companies under a family, do not determine sufficient reason to apply the survey.
In STS 497/2013 delimits the complete function based on definitions of previous judgments throughout the years, remaining as: “whose function is to avoid the abuse of the legal formula of the separation of assets from legal persons to achieve fraudulent use in order to avoid that under the influence of this fiction or legal form, private or public interests may be harmed, applying such doctrine when it is proven that the society in question lacks real and independent functioning with respect to the other person who controls it. The allegation of separation of assets of the legal entity does not fit when such separation is a fiction, describing it as corporate engineering, communication of responsibility, abuse of legal personality and formal appearance or the legal coverage of a legal person ”.
Their invocation is required for the courts to apply, if they did not, they would incur an inconsistency in their argumentation, according to the STS 28 February 2008 in which out of respect for the principle of civil justice requested, and for the principle of judicial protection effective, The court of first instance cannot apply the lifting of the veil if the parties do not argue the fraudulent use of a company.
As more recent cases of the treatment on this doctrine, the SSTS 80/2014 and 101/2015 stand out: in the first sentence it declares that the lifting of the veil cannot be applied to different societies, since each one represents their interests and not those of the other subsidiaries, not being considered as instruments outside the law to achieve illegal ends.
The STS of 2015 estimates the lifting of the veil to a producer that was a debtor to Antena 3, and when its business began to fall and the debt increased, the company was gradually decapitalized, although at first it had no instrumental purpose.
BUDGETS AND CASES WHERE DOCTRINE IS APPLIED IN SPANISH Dº
After an analysis of the previous sections, we can see that practically all the cases in which the practice of the mentioned doctrine is proposed, are those synthesized by the German doctrine, influenced by the American doctrine. In Spanish doctrine, developed by Professor Boldó Rodá. Three budgets to apply it stand out:
- Domain of the company by another person, whether physical or legal: it consists of the control of the company by outsiders, nullifying the will of the company and replacing it with that of the controlling person. This requirement is included in most of the jurisprudential doctrine and is included in the group of cases "control or effective management". Injury of third parties or fraud of law: it is about carrying out an operation that damages the rights or legitimate interests of third parties. people or art. 4.4 of the Civil Code. It is considered as an indispensable condition to apply it and it is reiterated throughout the jurisprudence as in SSTS 7769/2007, 718/2011, 497/2013 to name a few. Prevalence of the subsidiarity principle:the courts must apply the doctrine of lifting the veil under the principle of subsidiarity, thus defending the concept of ultima ratio that Serick used in German theory, and defended by various judgments such as SSTS 326/2013, February 28, 2008 and 14 October 2010. The use of this principle unleashes the restrictive application of the TS due to the collision of other principles such as legal certainty and justice.
4.1. Confusion of assets and spheres (comparative law origin):
This situation derives from the legal problem of the self-contract, which consists in the fact that the two parts of the contract exist but in which only one is the legal actor.
To begin with, the self-contract is prohibited by art. 1459 of the CC and 267 of the Commercial Code, but the Supreme Court in STS 5/23/1977 and November 29, 2001 admits its use as long as it does not incur incompatibility of interests and there is express power to self-contract.
The doctrine carried out by the General Directorate of Registries and Notaries from the resolutions of February 27, 2003, July 18, 2006, June 21, 2013
In which they stipulate that the administrator of a company cannot self-grant the power of self-contracting, this power must be expressly granted by the General Meetings of both companies and once any conflict of interest situation has been eliminated.
Presenting a typical example, we have a person named administrator of a company dedicated to the sale of construction materials; At the same time, he is the sole partner of a company dedicated to the construction of housing: the person named administrator makes a sale of materials at cost price to the company that he runs through the administrator of his own company. Although at first glance it seems that it is a simple sale and purchase between two different administrators, we can see that the person who manages the first company is benefiting the operation he runs, since he is a sole partner.
In self-contracted cases, the jurisprudence has been clearer when applying the doctrine of lifting the veil; in STS 83/2011 specifies the requirements that must be given for the application of the doctrine such as: a) full control of both companies, b) operation between both companies, c) no economic justification in the operation.
Checking that the requirements are met, the doctrine is applied alleging all the previous jurisprudence related to "instrument to correct the fraudulent use of legal personality" for the violation of 6.4 of the CC regarding the fraud of law, because we find the act under study, the coverage standard that is art 1452 CC that allows the sale, and the prohibitive standard that are art. 1459 of the CC and article 267 of the Commercial Code that prohibit both the president and the depositary from buying for themselves or for others who have been ordered to sell.
As a consequence, and according to STS September 30, 2004, the administrators who contract the debt to the partners and society will be held liable, and may incur in unfair administration and corporate crimes.
Another situation of equity confusion arises when a person creates two companies (like the previous example) and due to the constant sale of assets at a very low price, the supplier company ends up eroding its own funds and contracting debts with creditors. Here a “business communication” occurs that defends the jurisprudence and there is no room for separation of assets due to being a legal entity, when such separation is a fiction to achieve a fraudulent purpose according to SSTS 500/2004, 5289/2006 and 4449/2007 and when "whoever manages an organism internally and in a unitary and total way, cannot invoke that there are several independent organizations and less when it is in the hands of a single person, either directly or through figureheads or another society" according to STS May 28, 1984 and ss.
Although many cases of fraud are dealt with in the sole personality, it does not mean that when such a society is involved, the doctrine has to be applied, it is necessary that it be used fraudulently according to the STS of June 5, 1990.
4.2 Undercapitalization. (compared right origin)
This is the situation that occurs when the company has a manifestly insufficient level of own funds for the risk associated with the development of the activity to which it is dedicated.
Two types of undercapitalization are distinguished: the material one, when the partners do not endow the company with the capital resources necessary to carry out the corporate purpose, either by way of a capital of responsibility or by the credits granted by themselves; and nominal, when the company is endowed with financial means for the development of the corporate purpose, but the needs of own funds are financed with credits from the partners.
According to the RDGRN of June 22, 1993, an a priori control of the "good" or "bad" capitalization of the company is not possible.
The issue of undercapitalization is an issue that has been extensively addressed, but in practice there are few cases related to undercapitalization and the doctrine of the uprising. Thus highlighting SSTS 7769/2007 and 101/2015, in which the first one, a company contracts a debt for tort and is obliged to pay compensation, the company, lacking sufficient equity and demonstrating undercapitalization, the TS extends the responsibility to the partners (the doctrine and STS 5437/2001 defend that it is possible to extend the responsibility to the partners by lifting the veil if the creditor could not verify the status of the company when contracting a debt, such as is the case. If a financial institution wanted to give a loan to a company with a very low net worth,the responsibility would come to society for not putting sufficient diligence and once it was verified that the balance sheet was not falsified).
The last sentence that speaks of undercapitalization is STS 101/2015, by which a company, after contracting the obligation to pay a debt, gradually decapitalized itself until it could not face the society, so the TS decided to extend responsibility to partners.
4.3 External management. (compared right origin)
It consists in that some societies are participated by another in a majority or total way, minimizing the will of the dominated society and replacing it with that of the dominator. In this sense, not only has the TS Civil Chamber been pronounced, but also the Social Chamber.
But as we have seen after analyzing STS 80/2014, the doctrine of lifting the veil cannot be applied simply because there is a group of companies controlled by another, as long as those companies have their own purpose and their will remain autonomous. Not as long as art. 42 of the CCOM the doctrine is applied.
The jurisprudence of the Social Chamber has added several assumptions in which it is possible to apply the lifting of the veil in groups of companies and extend labor responsibilities to other companies:
- Unitary foundation of the work organizations of the group companies (October 8, 1987). Joint, simultaneous or successive work provision in favor of several group companies (SSTS March 4, 1985 and December 7, 1987). Creation of apparent companies without real support, determinants of an exclusion of labor responsibilities (SSTS March 3, 1987, June 8, 1988 and July 24, 1989). Confusion of templates and assets, external appearance of business unit and management unit (SSTS November 19, 1990 and June 30, 1993).
To determine the degree of control of a society, we can submit the case to an index test established by the Disregard doctrine:
- The parent company owns all or most of the capital of the subsidiary. The parent company and the parent company have the same administrators and managers. The parent company finances the subsidiary. The parent company has subscribed all the shares of the subsidiary or is The company responsible for carrying out its constitution. The subsidiary company is heavily undercapitalized. The parent company pays the wages and other expenses or losses of the subsidiary. The subsidiary dedicates all its activity to the parent company.or has no other equity than that transferred to the parent In the documents of the parent company the subsidiary is described as a department or division of the parent or the parent is responsible for its financial activity The managers or executives do not act independently for the benefit of the subsidiary, receive orders from the parent to act on their behalf. The formal requirements of the subsidiary are not observed. The parent uses the properties of the subsidiary as its own.
The STS of October 17, 2000 dismisses the application of the lifting of the veil because it found no evidence of fraud due to: 1) the shareholders of the companies had not been proven to be the same 2) the single administration coincidence had not been demonstrated; 3) there was no coincidence of registered offices and 4) the fact that one company had assumed the debts of another was not verified. Therefore, it was not proven that society “lacked real and independent functioning with respect to the other that controls it, becoming a simple instrument of one or more others to act in commercial traffic”.
Less extensively, art. 42 of the CCOM considers that there will be a control of companies when a company, classified as dominant, is in relation to another, classified as dependent, when:
- Possesses the majority of the voting rights. Has the power to appoint or remove the majority of the members of the administrative body. May have, under agreements with third parties, the majority of the voting rights. votes to the majority of the members of the administrative body, who perform their duties at the time when the consolidated accounts must be drawn up and during the two immediately preceding years. In particular, this circumstance shall be presumed when the majority of the members of the administrative body of the dominated company are members of the administrative body or senior managers of the dominant company or of another dominated by it.
4.4. Abuse of legal personality (comparative law origin)
Considered as a residual clause, these are cases in which legal personality is separated from society as a vehicle to evade contractual, extra-contractual and even family obligations to cause harm to third parties. According to Fuentes Naharro, institutional and personal abuse are distinguished, the former tries to exercise a right contained in the legal system but seeking an illegal purpose. The personnel arises when in the exercise of a right, a third party is harmed in breach of good faith.
Naming the SSTS of April 14, 2004 and July 20, 2006, the doctrine of lifting the veil is used to demand responsibility from whoever turns out to be the true responsible party without being lawful, without it being illegal to use the corporate form as mere instrument of circumvention of responsibilities and avoiding the use of the personality as a mere instrument of fraud (art 6.4 CC), trying to avoid that the abuse of the personality may harm private or public interests, cause harm to others, or circumvent the rights of others (art. 7.2 of the CC).
4.5. Defense of action of a third party domain (Spanish origin)
As a last assumption, we must name the cases in which a third party domain is involved, in which the STS December 21, 2000, and complemented by subsequent SSTS May 19, 1997, July 16, 1997, March 11, 1998, October 28, 1998 and April 7, 2000 express that the third party action of domain, regulated in articles 1532 and ss. of the Civil Procedure Law, has the object that, “before the seizure of a property, the third party who claims to be the owner -and that the seized defendant is not- interposes it to declare that she is the true owner of the right of property and the embargo is lifted locked on her thing ”. The nature of the action is not really claiming, it is the declaration of ownership in favor of the third party; and it is an essential condition that the plaintiff is truly a third party.
The jurisprudential doctrine denies the quality of third party in the domain third parties when there is a coincidence of interests, or confusion of assets or personalities between the third party applicant and the executed (SSTS February 22, May 30, October 11 and December 31, 1999, January 31 and November 22, 2000, and those cited, among others)
The practice of the doctrine occurs in cases in which a company is created to transfer the assets that were to be seized, as evidenced by the facts of STS 7100/2008, one of the partners of the company with seized assets they create another society and sell the good the question. The appeal is dismissed because it was shown that the partners of both companies were the same and, taking advantage of the separate personality that was granted to them, they decided to exercise a third-party domain action, which is dismissed. Analogous situation occurs in STS 4144/2008.
CRITICALS TO THE DOCTRINE OF LIFTING THE VEIL: OPPOSING PRINCIPLES, ALTERNATIVES TO DOCTRINE
As we have seen, the use of the doctrine is focused on dismissing the legal personality of a company and extending the responsibility to the partners. The use of this practice unleashes various points of opinion, since the objective is to eliminate (temporarily) the legal institutes of the separation of personalities and assets and limited liability, and thus yielding to the principle of legal certainty, ideal taken into account by the judges when applying the survey, hence in practically all the judgments, specify that it is a restrictive and subsidiary practice.
In the STS of 1984 it established four assumptions to apply it (apart from those named by the doctrine), which are:
- Conflict between legal certainty and justice Application through equity and according to good faith Damage of interests and Fraud of law Abuse of law and antisocial exercise thereof
After treating the last two requirements throughout the work, we will try to explain the guiding principles of this doctrine:
5.1 Conflict between legal certainty and justice, equity and good faith
Transposing the principles to the case, it deals with the preponderance of justice (derived from a fraudulent and abusive act of the right to which a correct application of the law is required) for the legal certainty afforded by the legal system respecting limited liability and separation of people. The Spanish Constitution reflects both principles and must be weighed.
Legal certainty has been defined by the Constitutional Court as "the principle of the rule of law that everyone knows their rights and obligations with certainty and can foresee the consequences of their actions."
As the 1984 STS has glimpsed, this principle has been limited by the value of justice, so it is not an absolute value and must weigh its use.
To limit and try to safeguard the two principles. The jurisprudence continually reiterates its restrictive nature and as a last option, as warned by STS 874/2011, in which if any case of contractual breach were automatically answered by the partner or administrator, it would mean the legal breach of the limited liability regime and the existence of sole proprietorships (based on STS June 5, 1990).
In order to overcome legal certainty on the part of the justice system, the equity of the 3.2 CC applies, which stipulates that the norms must weigh and base the resolutions on the basis of equity when the law allows it, leading the court to resolutions of agreement the value of justice as opposed to results where the mere application of the law would have led to sentences of very dubious morality, such as the case of the extension of responsibility to a person hidden behind the legal personality, for which of having incurred in an illegality, it would not be fair that the defendant of the conflict can continue to be hidden behind the advantages of a society and the truly responsible person will be exonerated; and harmed the affected part,not fulfilling the maximum aim of the definition of justice that is "to give each one his own".
The good faith of art. 7 CC is always present in all sentences, in that all acts must be done according to the principle of good faith, so if it does not exist, and therefore damages third parties, the act is unlawful and undertakes to indemnify the affected party.
5.2 Alternatives to doctrine .
After the previous section, we have described the problem of principles that the doctrine of the uprising faces, but there is a doctrinal sector that is committed to another solution that does not harm the principle of legal certainty, defending that all the previous casuistry would be solved With a finalist interpretation of the norm or a smaller doctrinal sector in Spain defended by Professor Ruiz-Rico Ruiz, she is more committed to joint responsibility between the partner and society, already applying by the Jurisprudence of the Social Chamber regarding external management cases.
Focusing on the alternative of the finalist interpretation developed by Muller-Freinfels and Rehbinder due to the problem that Kübler proposed in which the legal person can be used as a shield is that the judge must apply a certain rule to a legal person interpreting whether that rule should reach the partner, the company or both at the same time. In short, the problems of legal certainty can be solved by interpreting the rules in a final way, based on the purpose developed by the legislator.
The author Paz Ares has attempted to reconstruct the casuistry of the cases transferred from comparative law to the finalist doctrine on two principles: the extension of the imputation and that of the liability of the partners for social debts, distinguishing the following cases:
- Undercapitalization, postulating a restrictive thesis on liability. Confusion of assets, creating an infringement of accounting duties that prevents a formal reconstruction of the assets of the partner and society Confusion of spheres, limiting the application to cases in which the creditor does not has been able to identify the counterparty or when it has been to think that the partner is the counterparty External management or corporate ownership when the responsibility of a dependent company is transferred to the parent company.
CONCLUSIONS
32 years have passed since the first time that the doctrine of the lifting of the veil was applied in Spain and since then, it continues to be governed by jurisprudence and doctrinal definitions originated in comparative Anglo-Saxon law (Common Law) and German, but applying and adapting to the Spanish reality.
Currently it continues to be applied with great success in Spanish jurisprudence, qualifying the assumptions in which it can be applied, adapting to complex reality and demonstrating the restrictive nature of the doctrine as a last-ratio solution.
Even so, it suffers from two problems: 1) the conflict with the principles of legal certainty and justice and 2) the conceptual reiteration, ambiguity and lack of specific regulation that appear with practice, having already enough cases and time to think in a possible regulation of the doctrine or “regulation of the cases of extension of the responsibility contracted towards the partners”.
In law 7/2012 of October 29, introduces a section in art. 170 of the LGT that allows the administration to establish the prohibition of alienating the real estate of a company without the need for the collection procedure to be directed against it. We can take this modification as a possible starting point for the regulation of this doctrine. For this doctrinal change we could rely on the finalist theory of the interpretation of the norms.
In Latin America, several laws have been drafted in order to regularize the doctrine of lifting the veil. We find some examples such as the Argentine Commercial Companies Law of 1972, the Uruguayan Law 16060 on Societies of 1989 and, especially, the Draft Decree on the Law of Dismissal of the Mexican Corporate Legal Personality. In which the law itself stipulates respect for legal personality and its restrictive application.
We could understand that, expressing all the casuistry and jurisprudence carried out during this time and establishing in a legal text the material assumptions in which the legal personality of the companies is rejected, we would do nothing more than undermine the principle of legal security; but such a case would not occur, rather it would be strengthened and would allow the parties to know if they are acting contrary to law, apart from optimizing the legal and jurisprudential order of doctrine, avoiding possible abuses in practice (SAP Santander of 24 of May 1993, in appeal to the judgment of the 1st instance court of Santoña of April 1990), being able for the first time to make a legal concept of the doctrine that can be supported by jurisprudence, without having to reformulate the foundations in each judgment,functions and assumptions of the doctrine, continuously repeating and making a “copy and paste” in each sentence without practically contributing anything new, and creating doctrinal definitions of an entire page of a sentence with concepts already formulated and in which it is expected to increase with the passage Over the years, the complex reality of both the cases formulated and that of society, while advancing and innovating in corporate practice for evading laws; sufficient reasons to include the doctrine in a legal text.and creating doctrinal definitions of an entire page of a sentence with concepts already formulated and in which the complex reality of both the formulated cases and that of society is expected to increase over the years, while advancing and innovating in corporate practice for evading laws; sufficient reasons to include the doctrine in a legal text.and creating doctrinal definitions of an entire page of a sentence with concepts already formulated and in which the complex reality of both the formulated cases and that of society is expected to increase over the years, while advancing and innovating in corporate practice for evading laws; sufficient reasons to include the doctrine in a legal text.
BIBLIOGRAPHY
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Webgraphy
- Official Website of the European Union; The Jurisprudential doctrine of lifting the veil: http://europa.eu/epso/doc/es_lawyling.pdfCesar Roy; The doctrine of the lifting of the veil (I, II, III, IV): http://queaprendemoshoy.com/levantación-del-velo-de-la-persona-juridica-i/Arturo Puig Sanfiz; Some considerations on the doctrine of the lifting of the veil (2013): http://www.elderecho.com/www-elderecho-com/consideraciones-doctrina-levantación-velo_11_539680001.htmlLuis Cazorla; Luis Cazorla's blog; The STS of February 28, 2014 and the doctrine of the lifting of the veil (2014): http://luiscazorla.com/2014/03/la-sts-de-28-de-febrero-de-2014-y-la- doctrine-of-the-lifting-of-the-veil / Manuel Leva Fernández; Company groups and the lifting of the veil for labor purposes.
Yágüez Ángel. R; 1997. The doctrine of lifting the corporate veil of the legal person in jurisprudence. Madrid, Editorial Civitas. PP 44
Embid Irujo JM, lifting the veil once again. The law February 11, 1992
Roda bolled. C, Lifting the veil of the legal person in a case of contractual responsibility, 1996; pp. 250.
Marbury v. Madison, 5 US 1 Cranch 137 137 (1803): created the doctrine of modern constitutionalism, declaring that a rule contrary to the constitution is null.
Rolf Serick, Rechtsform und Realität Juristscher Personen (1980)
Carsten Alting, 1995; Piercing the Corporate Veil in American and German Law- Liability of Individuals and Entities.
Married Andrés, B; the doctrine of lifting the veil; 1/16/2013; Legal news. And Pérez Bernabeu. B; 2012. lifting of the veil and tax liability. PP 38.
Roda bolled. C: “Lifting of the veil and legal entity in the Spanish private D. 4th ed. (2006) pp. 268 et seq. Collected in: The lifting of the veil as an impediment to the avoidance of civil liability. Jose Luis Seoane Spiegelberg. Civil liability and insurance magazine. (2013) pp. 13 and 14
Boldó Roda, C; The lifting of the veil and the legal personality of commercial companies, 1993, p. 17.
César Roy. Lifting of the legal entity III: undercapitalization. What We Learn Today. Also Arturo Puig Sanfiz; Some considerations on the doctrine of the lifting of the veil (2013). Elderecho.com
Pérez Ibáñez. A. 2014. The doctrine of lifting the veil of legal persons in commercial companies
Case 114 F.2d 177 (10th Cir. 1940) list established in this case. According to Boldó Roda. Page 146, and includes José Luis Seoane Spiegelberg. Civil liability and insurance magazine. (2013) pp. 13 and 14
"Fuentes Naharro, M; The lifting of the veil in groups of companies as a protective instrument for creditors. Company Law Magazine. no. 28, 2007. Pag 352
Ruiz-Rico Ruiz. C, the lifting of the veil in commercial companies: Legal arguments aimed at reducing its applicability. BOE; 1989
Friederich Kübler. Company Law (2001)
Wolfram Mfiller-Freienfels, Zur Lehre vom sogenannten Durchgriff bei juristischen Personen im Privatrecht, in archiv for die civllistische praxis 522 (1957). Eckard Rehbinder, konzernaussenrechi 'und allgemeines privatrechr 85-130 (1969); eckard rehbinder, zehn jahre rechtsprechung zum durchgriff im gesellschaftsrecht, in fesschrifr for robert fischer 579, 579-603 (1979). Carsten Alting, 1995; Piercing the Corporate Veil in American and German Law- Liability of Individuals and Entities.
Paz-Ares, C; on the undercapitalization of companies.
In these sentences, the survey was applied without confirming the existence of fraud in the acts of society, which describes it as “just intuition” Jesús Lobato de Blas.
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